All posts tagged Supreme Court

This week in Statshot, there’s little correlation between Supreme Court justices’ talkativeness and the number of opinions they end up writing; despite increased scrutiny from the Food and Drug Administration, energy drinks saw an almost 7% increase in sales in 2013; and last year, Spanish ultrarunner Kilian Jornet set speed records for ascending three major mountains.

When philosophers or judges think their opponents are exaggerating the potential dire consequences of one line of argument or another, they often deploy the phrase “parade of horribles” to mock the hand-wringing.

Indeed, in her concurring opinion, Justice Ginsburg accused Chief Justice John Roberts of brandishing the “broccoli horrible” when he argued that, had the Supreme Court accepted the argument that the Commerce Clause gives Congress the right to penalize people if they fail to buy health insurance, then it could also penalize them for declining to buy broccoli. She elaborated:

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ian state as a credible reason to deny Congress the author­ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

I always assumed that “parade of horribles” was pure rhetoric, possibly imported from philosophy. (I even imagined British philosophy, specifically.) But now, thanks to Ben Zimmer, I have learned that the phrase refers to real parades, parades taking place today:

I linked last week to a piece by the Harvard Law professor Jack Goldsmith, explaining why Supreme Court clerks — and the Justices themselves — never leak. Yesterday, however, Jan Crawford, of CBS News, reported on the internal politics behind last week’s monumental health-care decision — and someone certainly was talking. Crawford writes,

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Orin Kerr, a law professor at George Washington University, says he can’t remember anything quite like it. If a clerk leaked, he says, it would be a “career-ending move”; if a Justice did so it might poison relationships on the Court….

As the law professor Orin Kerr notes, there’s been a lot of speculation about whether the conservatives on the Supreme Court thought they’d won the day, only to be undone by a late change of heart by Chief Justice John Roberts. There are fleeting indications in Justice Antonin Scalia’s dissent, for example, that it was not originally drafted as such.

Kerr makes the case against a late shift by the Chief Justice, but links to others making the “pro” case. (He admits that his “tentative speculation … is worth exactly as much as you paid for it.”)

Judge Richard Posner continues to amaze. I don’t know at what point he gave up on the idea of being nominated to the Supreme Court, but he opted instead to flout all of the conventional wisdom about what a federal appeals-court judge should do (and achieve near-total professional freedom in the process): He blogs, he opines, he dissects the reaction of banks, regulators and politicians to the financial crisis in books— and he takes part, as if he were just another pundit, in a Slate “Breakfast Table” on the latest Supreme Court opinions.

Even his asides are bracing. Imagine hearing something as frank as this at a judicial confirmation hearing:

I don’t object to a loose construction of the Constitution; there isn’t any sensible alternative, given how old and out of touch the document is, how unrecoverable the actual thinking of its authors and ratifiers, and how vaguely worded so much of it is. But it would be nice if interpretation could be based on something more than gut. We need evidence-based law as we need evidence-based medicine.

But in yesterday’s entry, Judge Posner’s main target was what he called “‘law-office’ social science,” which he analogized to “‘law-office’ history.” In both cases, the phrase refers to lawyers and judges using data to bolster their own opinions while failing to adhere to the standards of real historians and scientists. In particular, he writes,

How is it that reporters can prise details of military bunglings and West Wing power plays from sources, yet Supreme Court clerks remain mum about major decisions like the one involving the Affordable Care Act (which has already been decided, though the opinion won’t be released till tomorrow)?

Jack Goldsmith, a former clerk himself and now a professor at Harvard Law School, explains how the incentives with respect to leaks differ in the judicial branch. Money is part of it:

After one year at the Court, clerks can fetch hundreds of thousands of dollars in signing bonuses from law firms and are all but guaranteed successful careers. Leaking the Court’s decisions is one of the few ways to screw up these prospects. The leaker would have a hard time obtaining or keeping a license to practice law. And he or she would establish a reputation for irresponsible gabbing in a profession that places a super-high premium on the ability to keep confidences. No clerk wants to take these risks, especially since the chance of getting caught is relatively high.

Machiavellian thinkers? It’s possible for the Supreme Court to undermine the case for government regulation by increasing the power of a government agency, according to two law scholars.

Consider the following scenario, probably unlikely but entirely plausible: The Supreme Court strikes down a large chunk of the Affordable Care Act, and the first draft of the opinion is written by a hotshot law clerk for a conservative justice—a clerk who is actually a liberal. This clerk does not actually believe the arguments she is making, but nevertheless fashions the cleverest attacks she can against the law. Conversely, if the court’s supposed liberal wing upholds the law, it is possible that conservative law clerks will have contributed to the effort.

Some justices, note Harvard law professors Jacob E. Gersen and Adrian Vermeule, in a fascinating paper titled “Delegating to Enemies,” hire only clerks whose ideologies align with their own. But others recognize that a hard-working ideological “enemy” can be more valuable, given the constraints of the job, than a slightly-less-hard-working ally. (They don’t add, but could, that the enemy clerk might work harder specifically because she knows her overarching legal theories are suspect, and therefore she has to prove herself.)

“Notwithstanding the conventional wisdom that friends are better agents than enemies, there is a longstanding practice of delegating to enemies in law and practice,” Gersen and Vermeule write.

While their theory has implications for how lawyers should understand, for example, the constitutional doctrine of separation of powers, their examples have a stand-alone, Machiavellian fascination: Lincoln solidified support for the Civil War by placing Democratic-leaning generals in high positions and pulling together a team-of-rivals Cabinet; President Obama did something similar, on a smaller scale, by nominating a Republican, Ray LaHood, to be his Secretary of Transportation.

“The transformation of enemies into allies, Machiavelli claims, can be effected by granting enemies some power or benefit; doing so can cause ‘those men who were distrusted [to] become faithful,” write Gersen and Vermeule….

In 2005, the Supreme Court ruled it unconstitutional to impose the death penalty on people who had committed their crimes before the age of 18. In this term, it is weighing whether life without parole is also a penalty too severe for people who, in the eyes of many, do not possess the same level of self-control, maturity, and comprehension of the consequences of their actions as adults.

A recent study looked at whether white Americans’ beliefs about this issue are influenced by race. Perhaps unshockingly, they turned out to be. …

Many studies have attempted to divine whether retirement helps or hurts longevity. On the one hand, a job might provide a reason to live, a sense of purpose, and so on. On the other hand, retirement can mean the end of daily stress — which should be a good thing, in terms of health.

One reason the subject is difficult to study is that voluntary retirement is hard to disentangle from unemployment in old age — or forced retirement. To get around that problem, Ross M. Stolzenberg, a sociologist at the University of Chicago, looked a group that has unique freedom to retire on its own terms: Supreme Court Justices, who have lifetime tenure (and often make full use of the privilege).

Stolzenberg looked at the lifespans of Justices who served from 1801 through 2006, and the age at which they retired (if they did), slicing the data several different ways and applying various statistical techniques. The result:

Biographies

Gary Rosen is the editor of Review and the former managing editor of Commentary magazine. His articles and reviews have appeared in the Wall Street Journal, New York Times, Washington Post, and Los Angeles Times. He is the author of "American Compact: James Madison and the Problem of Founding" and the editor of "The Right War? The Conservative Debate on Iraq."